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Mishpatim, the Supreme Court and Religious law’s duality

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Yigal M. Gross
Yigal M. Gross is an attorney who advises financial institutions in leveraged finance transactions, including leveraged buyouts, refinancings and debt
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In 1961, two doctors opened a birth control clinic in New Haven, Connecticut, to provide medical advice to married individuals seeking to prevent conception. The doctors examined women and prescribed the best devices to help women prevent or terminate their pregnancies.

But there was one problem. The services these doctors provided were illegal. In 1961, Connecticut law prohibited Doctors from proscribing “any drug, medicinal article or instrument for the purpose of preventing conception.” And so, shortly after the clinic opened, the two doctors were arrested, tried, found guilty, and fined $100 each.

But the story didn’t end there. The Doctors appealed the decision, challenging the Connecticut law as unconstitutional. They pursued their claim through the court system until they reached the Supreme Court of the United States.

In its landmark Griswold v. Connecticut decision, the Supreme Court struck down the Connecticut law, holding that the Constitution affords individuals a right to privacy and that the Connecticut law violated that right to privacy. According to the Court, couples seeking contraceptives do so to facilitate their personal, intimate relationships. By regulating contraceptives, the government was venturing into the most private aspects of citizens’ lives. As Justice Douglas, who wrote the Griswold decision, put it: “Would we allow the police to search…marital bedrooms for … contraceptives?”

At first blush, the Court’s decision makes sense—the Connecticut law was clearly an invasion of privacy. But, upon further reflection, the Court’s reasoning is actually rather shocking. For the Constitution contains many rights—the right to free speech, the right to freely exercise one’s religious beliefs, even the freedom from unwarranted search and seizure. Nowhere, however, does the constitution speak of a “right to privacy.” Indeed the word “Privacy” appears not once in the Constitution or in any of its amendments.

Moreover, the implications of a “right to privacy” are huge—indeed, a number of subsequent, monumental decisions were predicated on Griswold’s right-to-privacy analysis. In 1973, in Roe v. Wade, the Court extended Griswold’s right-to-privacy analysis to strike down laws prohibiting abortion because such laws violate a pregnant woman’s right to “personal, marital, familial, and sexual privacy.” More recently, in Lawrence v. Texas, the Court extended the Griswold analysis yet again to strike down a number of Texas anti-sodomy laws, which targeted homosexual relationships, as impermissibly invading citizens’ privacy.

So how did the Court adopt such a right to privacy and was it correct to do so? But, perhaps most fundamentally, what does this have to do with the Biblical potion of Mishpatim, that Jews traditionally read this week?

For those who study law—and I would argue, particularly for those who study religious law—the analysis behind the Griswold decision is incredibly instructive.

Griswold’s finding of a “right to privacy” was predicated on the notion that the Constitution and its Amendments were not merely a collection of isolated laws, to be studied in a vacuum and technically applied. According to the court, such an approach, as it were, sees the trees but misses the forest. The laws are to be understood and studied collectively as the expressions of an idea or spirit that transcends the text. Moreover, that transcendental idea is not merely some abstract, flaky notion, but an imperative that, at times, dictates real and concrete results.

Mishpatim, set in the literal and figurative shadow of the Mount Sinai experience that immediately-precedes the Mishpatim portion, can be understood as beginning a process—which continues through the rest of the Torah—of fleshing out the Aseret HaDibrot, or what are commonly known as the Ten Commandments (there are actually more than ten, but that’s a separate discussion). The Aseret HaDibbrot’s laws—prohibitions against adultery, murder and theft and concepts of familial piety—seem more like fundamental human laws than novel religious concepts. They are, moreover, incredibly non-specific. So Mishpatim begins qualifying and defining the laws and, in so doing, giving them their unique religious character.

Let’s explore two examples.

First, the Aseret HaDibrot command “Lo Tignov,” “You shall not steal.” But such a law presupposes property rights—someone needs to ‘own’ something in order for someone else to ‘steal’ it. And the Torah’s terse commandment doesn’t let us know, moreover, what can be ‘stolen’ and ‘how’ it can be stolen. Mishpatim begins providing the religious answer to those questions. For example, you can ‘own’ people through slave and maidservant laws, which, unlike recent notions of slavery, had nothing to do with race and imposed strict duties upon slaveowners. Duties so strict that Talmudic sages observed that “one who acquires a slave actually acquires a master.” You can ‘steal’ people—the laws of kidnapping, which Mishpatim literally refers to as “stealing a life.” Moreover, liability arises even if you don’t actually come to possess anything, but merely damage someone else’s property.

Second, Aseret HaDibrot command “Lo Tirtzakh,” “You shall not murder,” but, again, what does that mean? For starters, how do we distinguish unjustifiable “Murder” from a justified “Killing”? Mishpatim’s answer is that a guilty mind—or Mens Rae in legalese—sets murder apart from killing. One who accidentally kills has a place to flee; one who intentionally murder does not—“Me’Im Mizbechi Tikachenu Lamut” “Even [God’s] altar shall not afford him sanctuary.” And Mishpatim’s qualification goes even a step further: there are certain circumstances—such as the Bah BaMakhteret, killing a thief who breaks into one’s home at night—where the Torah deems even an intentional killing to be justified.

So, in short, Mishpatim takes the Aseret HaDibrot’s human laws—theft, murder and adultery—and builds upon them and shapes them, to make them religious laws. In so doing, Mishpatim and religious law at large, does something magnificent—it does not negate our humanity; it accepts and even embraces humanity by taking fundamental human laws, injecting them with “divine input” or godliness, to make us godly humans through their practice.

In the end, Mishpatim’s laws are not merely technical laws; they are—like other religious laws—designed to shape the character of those who keep them in the image of the God who gives them. How so? Consider a final anecdote about the Supreme Court.

The Constitution’s First Amendment affords Americans the right to free speech. But this right has limits – and certain types of speech are not protected. Speech that would endanger others, such as screaming Fire in a crowded theater, for example, is not protected speech. Another type of unprotected speech, which can be legally prohibited, is “obscenity” speech and a subset of unprotected “obscenity” speech is pornography. The problem is, how do you define pornography?

In 1964, when the Court dealt with precisely this issue, Supreme Court Justice Potter Stewart suggested the following: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

Justice Stewart’s decision has been strongly criticized and even ridiculed in the legal community—and, perhaps, rightfully so. To say the least, “I know it when I see it” is a rather amorphous and seemingly unrealistic standard. When would it apply? Indeed, when would it not apply?

And yet, it speaks to a certain concept that I believe resonates with religious people—that there is a certain transcendental idea, a spirit that animates a legal system. Such that the system not only serves the pragmatic purpose of maintaining a social order. It also has a transformative purpose—to sculpt and shape the mind and character of those who practice it.

To such a trained and seasoned mind, the conclusion—and the course of action needed to be taken—is clear, even if the method used to arrive at the conclusion may not be.

So it is with religious law. If we study religious law with perspective and probe its greater meaning, we become more than manual-following technocrats in the following two respects. First, like Griswold, where the Court used its understanding of existing Constitutional law to essentially fashion a new right to privacy, we use our understanding of the meaning behind religious law to take the analysis a step further, and develop rules for new or changing realities. Second, and perhaps more profoundly, as suggested by Potter Stewart, by thoughtfully considering and practicing religious law, we develop a kind of religious sensitivity that cannot be captured by rule-making. Many of our actions are admittedly decided because, as religious people, even in the absence of a clearly religiously-dictated answer, “we just know it when we see it.”

Of course, that does not mean that we can just make up laws or contradict those that exist. A “spirit of the law” approach to religious law must arise from and be grounded in the letter of the law. Indeed, the opposite would arguably contradict religion’s purpose which, as Rabbi Sampson Raphael Hirsch once put it, is “to reform humans, not be reformed by humans.” But we also cannot so intensely study specifics that we lose sight of religious law’s spirit, focusing on the trees and forgetting the forest. We must—in our own individual way—balance both. As Rabbi Norman Lamm, a contemporary personification of that balance, once put it: “Without the body of the law, spirituality is a ghost. Without the sweep of the soaring soul, the corpus of the law tends to become a corpse.”

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